Smt Joyti Sunil Maniyar Vs ITO (ITAT Ahmedabad)
In the notice issued u/s 142(1) dated 11.10.2011 a specific query was raised by the AO about the capital gain income. After that, the assessee vide reply dated 22.11.2011 conceded the fact of non-disclosing the capital gain income. From the above, it is transpired that the assessee did not offer the capital gain income su moto for a quite long time until the AO raised the specific query about the undisclosed income.
The overall conduct of the assessee and circumstances suggest that the assessee deliberately did not offer the capital gain income in her income tax return. In our considered view, non-availability of the fund cannot be an excuse for not disclosing the capital gain income earned by the assessee. The case law relied on by the assessee before the lower authorities are not relevant to the facts of the case on hand. Therefore, we are of the view that the assessee has concealed her particulars of income by not disclosing the long-term capital gain in her return of income. AO was justified in levying penalty under section 271(1)(c) on the ground of concealment of income.
FULL TEXT OF THE ITAT JUDGMENT
The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals)–II, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)-II/Wd.2(4)/294/2013-14 dated 10.02.2014 arising in the matter of penalty order passed under s.271(1)(c) of the Income Tax Act, 1961(here-in-after referred to as “the Act”) dated 20.06.2012 relevant to Assessment Year (AY) 2009-10.
2. The grounds of appeal raised by the assessee are as under:-
“The following grounds are without prejudice to each other.
In view of the facts and circumstances of the case, the learned Assessing Officer/Commissioner of Income Tax (Appeals) erred-
1. The Learned Commissioner of Income Tax (Appeals) erred in confirming the penalty order under sec.271(1)(c) inter alia erred in giving finding that the assessee has concealed the particulars of income in reference to the sale of property of Rs.30,46,950/-. It is prayed that the penalty levied may please be cancelled.
2. The Learned Commissioner of Income Tax (Appeals) has erred in not appreciating the facts that the concerned Accountant has filed affidavit and thereafter he has not been cross examined by the Assessing Officer, and as such, the factual aspect brought to the notice by the Accountant in the affidavit is required to be believed in toto, and therefore, the penalty levied may please be cancelled on the ground of ‘bona fide’ of the assessee.
3. Without prejudice, the learned Commissioner of Income Tax (Appeals) has erred in not appreciating the fact that the property in dispute was purchased by the parents of the assessee at Jodhpur by their source of income and ultimately it has been sold by them at Jodhpur, and hence, the sales consideration has not been given to the assessee nor the same has been reflected in any bank account at Ahmedabad, and therefore, this factual aspect may please be considered as reasonable cause’ and the penalty order may please be quashed.
The appellant reserves its right to add, amend, alter or modify any of the grounds stated hereinabove either before or at the time of hearing.”
3. The assessee has also raised the additional grounds of appeal vide letter dated 14.06.2017 as reproduced under:-
“1. The learned C.I.T.(Appeals) has erred in not appreciating the facts that the penalty notice u/s.274 r.w.s. 271(1)(c) dated 15.12.2011 as well as 15.05.2012 is itself bad in law since there is no such specific allegation in reference to two limbs of section 271(1)(c), and therefore, consequential penalty order passed u/s.271(1)(c) is itself bad in law and void.”
4. The only issue raised by the assessee in its original grounds of appeal is that Ld. CIT(A) erred in confirming the penalty of Rs. 5,71,406/- under the provision of Section 271(1)(c) of the Act.
5. Briefly stated facts are that the assessee in the present case is an individual and filed her return of income dated 25.03.2010 declaring total income of Rs. 43,950/- under the head business and profession. The assessee in the year under consideration has sold a piece of land situated at 671, Samanvay Nagar Pal Road, Khasara, District Jodhpur Rajasthan. The piece of land was sold for Rs. 30,41,000/- dated 26.05.2008. However, the assessee failed to declare any income under the head capital gain on account of such sale of the plot. Therefore, the AO worked out the capital gain on the sale of such plot of land for Rs. 26,57,708/- only. The necessary computation of capital gain for Rs. 26,57,708/- stands as under:
